SECURITY AGREEMENT
Exhibit 10.2
1. THE
SECURITY. The undersigned Lakeland Industries, Inc., a Delaware
corporation (the “Pledgor") hereby assigns and grants to Bank
of America, N.A., its successors and assigns (“BANA”),
and to Bank of America Corporation and its subsidiaries and
affiliates (BANA and all such secured parties, collectively, the
"Bank") a security interest in the following described property now
owned or hereafter acquired by the Pledgor (the
"Collateral"):
(a) All
accounts, and all chattel paper, instruments, deposit accounts,
letter of credit rights, and general intangibles related thereto;
and all returned or repossessed goods which, on sale or lease,
resulted in an account.
(b) All
inventory.
(c) All
equipment now owned or hereafter acquired by the
Pledgor.
(d) All
of the Pledgor’s deposit accounts with the Bank. The
Collateral shall include any renewals or rollovers of the deposit
accounts, any successor accounts, and any general intangibles and
choses in action arising therefrom or related thereto.
(e) All
instruments, chattel paper, documents, certificates of deposit,
securities and investment property of every type.
(f) All
general intangibles. The Collateral shall include all good will
connected with or symbolized by any of such general
intangibles.
(g) All
negotiable and nonnegotiable documents of title covering any
Collateral.
(h) All
accessions, attachments and other additions to the Collateral, and
all tools, parts and equipment used in connection with the
Collateral.
(i) All
substitutes or replacements for any Collateral, all cash or
non-cash proceeds (including insurance proceeds), products, rents
and profits of the Collateral, and all income, benefits and
property receivable on account of the Collateral, and all
supporting obligations covering any Collateral.
(j) All
books, data and records pertaining to any Collateral, whether in
the form of a writing, photograph, microfilm or electronic media,
including but not limited to any computer-readable memory and any
computer software necessary to process such memory ("Books and
Records").
2. THE
INDEBTEDNESS. The obligations secured by this Agreement are the
payment and performance of (a) all present and future Indebtedness
of the Pledgor to the Bank; (b) all obligations of the Pledgor and
rights of the Bank under this Agreement; and (c) all present and
future obligations of the Pledgor to the Bank of other kinds. Each
party obligated under any Indebtedness is referred to in this
Agreement as a “Debtor.” "Indebtedness" is used in its
most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Debtor, now or hereafter
existing, absolute or contingent, liquidated or unliquidated,
determined or undetermined, voluntary or involuntary, including
under any swap, derivative, foreign exchange, hedge, or other
arrangement (“Swap”), deposit, treasury management or
other similar transaction or arrangement, and whether the Debtor
may be liable individually or jointly with others, or whether
recovery upon such Indebtedness may be or hereafter becomes
unenforceable. "Indebtedness" secured by the Collateral of such
Pledgor shall not include obligations arising under any Swap to
which it is not party if, and to the extent that, all or a portion
of the guaranty by such Pledgor to the Bank of, or the grant by
such Pledgor of a security interest to the Bank to secure, such
Swap, would violate the Commodity Exchange Act (7 U.S.C., Sec. 1.
et. seq.) by virtue of such Pledgor’s failure to constitute
an “eligible contract participant” as defined in the
Commodity Exchange Act at the time such guaranty or grant of such
security interest becomes effective with respect to such
Swap.
Except
as otherwise agreed in writing by the Bank and the Pledgor, if the
Indebtedness includes, now or hereafter, any Special Flood Zone
Loan, then the following shall apply: The Special Flood Zone Loan
shall not be secured under this Agreement by any Collateral which
would constitute “contents” located within the Flood
Zone Improvements. For the purposes of this subparagraph, (a)
“Flood Zone Improvements” means any
“improved” real property that is located within a
Special Flood Hazard Area; (b) a “Special Flood Zone
Loan” means a loan or line of credit which is secured by
Flood Zone Improvements; and (c) the terms “improved”
real property, “Special Flood Hazard Area,” and
“contents” shall have the meaning ascribed to them by
the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4001
et seq., and implementing
regulations, 44 C.F.R. Parts 59 et
seq., and/or the Federal Emergency Management Agency
(“FEMA”).
3.
PLEDGOR'S COVENANTS. The Pledgor represents, covenants and warrants
that unless compliance is waived by the Bank in
writing:
(a) The
Pledgor agrees: (i) to indemnify the Bank against all
losses, claims, demands, liabilities and expenses of every kind
caused by any Collateral; (ii) to permit the Bank to exercise
its rights under this Agreement; (iii) to execute and deliver such
documents as the Bank deems necessary to create, perfect and
continue the security interests contemplated by this Agreement;
(iv) not to change its name (including, for an individual, the
Pledgor’s name on any driver’s license or special
identification card issued by any state), and as applicable, its
chief executive office, its principal residence or the jurisdiction
in which it is organized and/or registered or its business
structure without giving the Bank at least 30 days prior written
notice; (v) not to change the places where the Pledgor keeps any
Collateral or the Pledgor's Books and Records concerning the
Collateral without giving the Bank prior written notice of the
address to which the Pledgor is moving same; and (vi) to
cooperate with the Bank in perfecting all security interests
granted by this Agreement and in obtaining such agreements from
third parties as the Bank deems necessary, proper or convenient in
connection with the preservation, perfection or enforcement of any
of its rights under this Agreement.
(b) The
Pledgor agrees with regard to the Collateral, unless the Bank
agrees otherwise in writing: (i) that the Bank is authorized
to file financing statements in the name of the Pledgor to perfect
the Bank's security interest in the Collateral; (ii) that the Bank
is authorized to notify any account debtors, any buyers of the
Collateral, or any other persons of the Bank's interest in the
Collateral, (iii) where applicable, to operate the Collateral
in accordance with all applicable statutes, rules and regulations
relating to the use and control of the Collateral, and not to use
any Collateral for any unlawful purpose or in any way that would
void any insurance required to be carried; (iv) not to remove
the Collateral from the Pledgor's premises except in the ordinary
course of the Pledgor's business; (v) to pay when due all
license fees, registration fees and other charges in connection
with any Collateral; (vi) not to permit any lien on the
Collateral, including without limitation, liens arising from
repairs to or storage of the Collateral, except in favor of the
Bank; (vii) not to sell, hypothecate or dispose of, nor permit
the transfer by operation of law of, any Collateral or any interest
in the Collateral, except sales of inventory to buyers in the
ordinary course of the Pledgor's business; (viii) to permit
the Bank to inspect the Collateral at any time; (ix) to keep,
in accordance with generally accepted accounting principles,
complete and accurate Books and Records regarding all the
Collateral, and to permit the Bank to inspect the same and make
copies at any reasonable time; (x) if requested by the Bank,
to receive and use reasonable diligence to collect the Collateral
consisting of accounts and other rights to payment and proceeds, in
trust and as the property of the Bank, and to immediately endorse
as appropriate and deliver such Collateral to the Bank daily in the
exact form in which they are received together with a collection
report in form satisfactory to the Bank; (xi) not to commingle
the Collateral, or collections with respect to the Collateral, with
other property; (xii) to give only normal allowances and
credits and to advise the Bank thereof immediately in writing if
they affect any rights to payment or proceeds in any material
respect; (xiii) from time to time, when requested by the Bank,
to prepare and deliver a schedule of all the Collateral subject to
this Agreement and to assign in writing and deliver to the Bank all
accounts, contracts, leases and other chattel paper, instruments,
and documents; (xiv) in the event the Bank elects to receive
payments or rights to payment or proceeds hereunder, to pay all
reasonable third-party expenses actually incurred by the Bank,
including expenses of accounting, correspondence, collection
efforts, reporting to account or contract debtors, filing,
recording, record keeping and other expenses; and (xv) to
provide any service and do any other acts which may be necessary to
maintain, preserve and protect all the Collateral and, as
appropriate and applicable, to keep all the Collateral in good and
saleable condition, to deal with the Collateral in accordance with
the standards and practices adhered to generally by users and
manufacturers of like property, and to keep all the Collateral free
and clear of all defenses, rights of offset and
counterclaims.
.
(c) If
any Collateral is or becomes the subject of any registration
certificate, certificate of deposit or negotiable document of
title, including any warehouse receipt or xxxx of lading, the
Pledgor shall immediately deliver such document to the Bank,
together with any necessary endorsements.
(d) The
Pledgor will maintain and keep in force all risk insurance covering
the Collateral against fire, theft, liability and extended
coverages (including without limitation flood, windstorm coverage
and hurricane coverage as applicable), to the extent that any
Collateral is of a type which can be so insured. Such insurance
shall be in form, amounts, coverages and basis reasonably
acceptable to the Bank, shall require losses to be paid on a
replacement cost basis, shall be issued by insurance companies
acceptable to the Bank and include a lender loss payable
endorsement and additional insured endorsement in favor of the Bank
in a form acceptable to the Bank. Upon the request of the Bank, the
Pledgor will deliver to the Bank a copy of each insurance policy,
or, if permitted by the Bank, a certificate of insurance listing
all insurance in force. Unless the Pledgor provides the Bank with
satisfactory evidence of the insurance coverage required hereby,
the Bank may purchase insurance at the Pledgor’s expense to
protect the Bank’s interest in the Collateral. This insurance
may, but need not, protect the interests of the Pledgor. The
coverage that the Bank purchases may not pay any claim that the
Pledgor makes or any claim that is made against the Pledgor in
connection with the Collateral. The Pledgor may later cancel any
insurance purchased by the Bank, but only after providing the Bank
with satisfactory evidence that the Pledgor has obtained insurance
as required hereby. If the Bank purchases insurance of the
Collateral, the Pledgor will be responsible for the costs of that
insurance, including interest thereon at the highest default rate provided in the
Indebtedness and any other charges which the Bank may impose in
connection with the placement of the insurance until the effective
date of the cancellation or expiration of the insurance.
The costs of the insurance may be
added to the outstanding principal balance of the Indebtedness,
shall bear interest at the default rate as provided above, and
shall be payable upon demand. The costs of the insurance may be more
than the cost of insurance the Pledgor may be able to obtain on its
own.
(e) The
Pledgor will not attach any Collateral to any real property or
fixture in a manner which might cause such Collateral to become a
part thereof unless the Pledgor first obtains the written consent
of any owner, holder of any lien on the real property or fixture,
or other person having an interest in such property to the removal
by the Bank of the Collateral from such real property or fixture.
Such written consent shall be in form and substance acceptable to
the Bank and shall provide that the Bank has no liability to such
owner, holder of any lien, or any other person.
(f) The
Pledgor shall not withdraw funds from any deposit account which is
part of the Collateral without the Bank's prior written
consent.
4. BANK
RIGHTS. The Pledgor appoints the Bank its attorney in fact to
perform any of the following rights, which are coupled with an
interest, are irrevocable until termination of this Agreement and
may be exercised from time to time by the Bank's officers and
employees, or any of them, whether or not the Pledgor is in
default: (a) to perform any obligation of the Pledgor
hereunder in the Pledgor's name or otherwise; (b) to release
persons liable on the Collateral and to give receipts and
acquittances and compromise disputes; (c) to release or
substitute security; (d) to prepare, execute, file, record or
deliver notes, assignments, schedules, designation statements,
financing statements, continuation statements, termination
statements, statements of assignment, applications for registration
or like documents to perfect, preserve or release the Bank's
interest in the Collateral; (e) to take cash, instruments for the
payment of money and other property to which the Bank is entitled;
(f) to verify facts concerning the Collateral by inquiry of
obligors thereon, or otherwise, in its own name or a fictitious
name; (g) to endorse, collect, deliver and receive payment
under instruments for the payment of money constituting or relating
to the Collateral; (h) to prepare, adjust, execute, deliver
and receive payment under insurance claims, and to collect and
receive payment of and endorse any instrument in payment of loss or
returned premiums or any other insurance refund or return, and to
apply such amounts received by the Bank, at the Bank's sole option,
toward repayment of the Indebtedness or, where appropriate,
replacement of the Collateral; (i) to enter onto the Pledgor's
premises in inspecting the Collateral; (j) to make withdrawals
from and to close deposit accounts or other accounts with any
financial institution, wherever located, into which proceeds may
have been deposited, and to apply funds so withdrawn to payment of
the Indebtedness; (j) to preserve or release the interest
evidenced by chattel paper to which the Bank is entitled and to
endorse and deliver any evidence of title; and (k) to do all
acts and things and execute all documents in the name of the
Pledgor or otherwise, deemed by the Bank as necessary, proper and
convenient in connection with the preservation, perfection or
enforcement of its rights.
5.
DEFAULTS. Any one or more of the following shall be a default
hereunder:
(a) The
occurrence of any defined or described event of default under, or
any default in the performance of or compliance with any
obligation, agreement, representation, warranty, or other provision
contained in (i) this Agreement, or (ii) any other contract or
instrument evidencing the Indebtedness.
(b) Any
involuntary lien of any kind or character attaches to any
Collateral, except for liens for taxes not yet due.
6.
BANK'S REMEDIES AFTER DEFAULT. In the event of any default, the
Bank may do any one or more of the following, to the extent
permitted by law:
(a)
Declare any Indebtedness immediately due and payable, without
notice or demand.
(b)
Enforce the security interest given hereunder pursuant to the
Uniform Commercial Code and any other applicable law.
(c)
Enforce the security interest of the Bank in any deposit account of
the Pledgor maintained with the Bank by applying such account to
the Indebtedness.
(d)
Require the Pledgor to obtain the Bank's prior written consent to
any sale, lease, agreement to sell or lease, or other disposition
of any Collateral consisting of inventory.
(e)
Require the Pledgor to segregate all collections and proceeds of
the Collateral so that they are capable of identification and
deliver daily such collections and proceeds to the Bank in
kind.
(f)
Require the Pledgor to direct all account debtors to forward all
payments and proceeds of the Collateral to a post office box under
the Bank's exclusive control.
(g)
Give notice to others of the Bank's rights in the Collateral, to
enforce or forebear from enforcing the same and make extension and
modification agreements.
(h)
Require the Pledgor to assemble the Collateral, including the Books
and Records, and make them available to the Bank at a place
designated by the Bank.
(i)
Enter upon the property where any Collateral, including any Books
and Records, are located and take possession of such Collateral and
such Books and Records, and use such property (including any
buildings and facilities) and any of the Pledgor's equipment, if
the Bank deems such use necessary or advisable in order to take
possession of, hold, preserve, process, assemble, prepare for sale
or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral.
(j)
Demand and collect any payments on and proceeds of the Collateral.
In connection therewith the Pledgor irrevocably authorizes the Bank
to endorse or sign the Pledgor's name on all checks, drafts,
collections, receipts and other documents, and to take possession
of and open the mail addressed to the Pledgor and remove therefrom
any payments and proceeds of the Collateral.
(k)
Grant extensions and compromise or settle claims with respect to
the Collateral for less than face value, all without prior notice
to the Pledgor.
(l)
Intentionally Omitted.
(m)
Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral. The Pledgor hereby consents to
the appointment of such a receiver and agrees not to oppose any
such appointment.
(n)
Take such measures as the Bank may deem necessary or advisable to
take possession of, hold, preserve, process, assemble, insure,
prepare for sale or lease, market for sale or lease, sell or lease,
or otherwise dispose of, any Collateral, and the Pledgor hereby
irrevocably constitutes and appoints the Bank as the Pledgor's
attorney-in-fact to perform all acts and execute all documents in
connection therewith.
(o)
Without notice or demand to the Pledgor, set off and apply against
any and all of the Indebtedness any and all deposits (general or
special, time or demand, provisional or final) and any other
indebtedness, at any time held or owing by the Bank or any of the
Bank's agents or affiliates to or for the credit of the account of
the Pledgor or any guarantor or endorser of the Pledgor's
Indebtedness.
(p)
Exercise all rights, powers and remedies which the Pledgor would
have, but for this Agreement, with respect to all
Collateral.
(q)
Receive, open and read mail addressed to the Pledgor.
(r)
Resort to the Collateral under this Agreement, and any other
collateral related to the Indebtedness, in any order.
(s)
Exercise any other remedies available to the Bank at law or in
equity.
7.
MISCELLANEOUS.
(a) Any
waiver, express or implied, of any provision hereunder and any
delay or failure by the Bank to enforce any provision shall not
preclude the Bank from enforcing any such provision
thereafter.
(b) The
Pledgor shall, at the request of the Bank, execute such other
agreements, documents, instruments, or financing statements in
connection with this Agreement as the Bank may reasonably deem
necessary.
(c) All
notes, security agreements, subordination agreements and other
documents executed by the Pledgor or furnished to the Bank in
connection with this Agreement must be in form and substance
satisfactory to the Bank.
(d)
Governing Law.
Except to the extent that any law of the United States may apply,
this Agreement shall be governed and interpreted according to the
laws of Alabama (the “Governing Law State”), without
regard to any choice of law, rules or principles to the
contrary. Nothing in this paragraph shall be construed to
limit or otherwise affect any rights or remedies of the Bank under
federal law.
(e) All
rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not
preclude the further exercise thereof or the exercise of any other
right or remedy.
(f) All
terms not defined herein are used as set forth in the Uniform
Commercial Code.
(g) The
Pledgor shall pay to the Bank immediately upon demand the full
amount of all payments, advances, and expenses, including
reasonable attorneys' fees, expended or incurred by the Bank in
connection with (a) the perfection and preservation of the
Collateral or the Bank's interest therein, and (b) the realization,
enforcement and exercise of any right, power, privilege or remedy
conferred by this Agreement, relating to the Pledgor, or in any way
affecting any of the Collateral or the Bank's ability to exercise
any of its rights or remedies with respect to the
Collateral.
(h) In
the event the Bank seeks to take possession of any or all of the
Collateral by judicial process, the Pledgor irrevocably waives any
bonds and any surety or security relating thereto that may be
required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any
such suit or action.
(i)
This Agreement shall constitute a continuing agreement, applying to
all future as well as existing transactions.
(j)
This Agreement shall be binding upon and inure to the benefit of
the heirs, executors, administrators, legal representatives,
successors and assigns of the parties, and may be amended or
modified only in writing signed by the Bank and the
Pledgor.
(k) The
secured parties covered by this Agreement include BANA as well as
Bank of America Corporation and its subsidiaries and affiliates.
Such secured parties are collectively referred to as the
“Bank.” If, from time to time, any of the Indebtedness
covered by this Agreement includes obligations to entities other
than BANA, then BANA shall act as collateral agent for itself and
all such other secured parties. BANA shall have the right to apply
proceeds of the Collateral against debts, obligations or
liabilities constituting all or part of the Indebtedness in such
order as BANA may determine in its sole discretion, unless
otherwise agreed by BANA and one or more of the other secured
parties.
(l)
Acknowledgement Regarding
Any Supported QFCs. To the extent that this Agreement and
any document executed in connection with this Agreement
(collectively, “Loan
Documents”) provide support, through a guarantee or
otherwise, for any Swap Contract or any other agreement or
instrument that is a QFC (such support, “QFC Credit Support”, and
each such QFC, a “Supported QFC”), the
parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under
the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx
Xxxx Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may
in fact be stated to be governed by the laws of the Governing Law
State and/or of the United States or any other state of the United
States):
(i) In
the event a Covered Entity that is party to a Supported QFC (each,
a “Covered
Party”) becomes subject to a proceeding under a U.S.
Special Resolution Regime, the transfer of such Supported QFC and
the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the
U.S. Special Resolution Regime if the Supported QFC and such QFC
Credit Support (and any such interest, obligation and rights in
property) were governed by the laws of the United States or a state
of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party
are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by
the laws of the United States or a state of the United
States.
(ii) As
used in this paragraph, the following terms have the following
meanings:
“BHC Act Affiliate” of a
party means an “affiliate” (as such term is defined
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Covered Entity” means any
of the following: (i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); (ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (iii) a “covered FSI” as that
term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b).
“Default Right” has the
meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“QFC” has the meaning
assigned to the term “qualified financial contract” in,
and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“Swap Contract” means (a)
any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps
or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with
any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master
Agreement.
8. FINAL
AGREEMENT. BY SIGNING THIS
DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS
AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS
AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS
DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF
THE PARTIES.
9.
Notices. Unless
otherwise provided in this Agreement or in another agreement
between the Bank and the Pledgor, all notices required under this
Agreement shall be personally delivered or sent by first class
mail, postage prepaid, or by overnight courier, to the addresses on
the signature page of this Agreement, or sent by facsimile to the
fax number(s) listed on the signature page, or to such other
addresses as the Bank and the Pledgor may specify from time to time
in writing (any such notice a “Written Notice”). Written
Notices shall be effective (i) if mailed, upon the earlier of
receipt or five (5) days after deposit in the U.S. mail, first
class, postage prepaid, (ii) if telecopied, when transmitted, or
(iii) if hand-delivered, by courier or otherwise (including
telegram, lettergram or mailgram), when delivered. In lieu of a
Written Notice, notices and/or communications from the Bank to the
Pledgor may, to the extent permitted by law, be delivered
electronically (i) by transmitting the communication to the
electronic address provided by the Pledgor or to such other
electronic address as the Pledgor may specify from time to time in
writing, or (ii) by posting the communication on a website and
sending the Pledgor a notice to the Pledgor’s postal address
or electronic address telling the Pledgor that the communication
has been posted, its location, and providing instructions on how to
view it (any such notice, an “Electronic Notice”).
Electronic Notices shall be effective when the communication, or a
notice advising of its posting to a website, is sent to the
Pledgor’s electronic address.
10.
Amendments. This
Agreement may only be amended by a writing signed by the parties
hereto; which, to the extent expressly agreed to by the Bank in its
discretion, may include being amended by an Electronic Record
signed by the parties hereto using Electronic Signatures pursuant
to the terms of this Agreement.
11.
Electronic Records and
Signatures. This Agreement and any document, amendment,
approval, consent, information, notice, certificate, request,
statement, disclosure or authorization related to this Agreement
(each a “Communication”),
including Communications required to be in writing, may, if agreed
by the Bank, be in the form of an Electronic Record and may be
executed using Electronic Signatures, including, without
limitation, facsimile and/or .pdf. The Pledgor agrees that any
Electronic Signature (including, without limitation, facsimile or
..pdf) on or associated with any Communication shall be valid and
binding on the Pledgor to the same extent as a manual, original
signature, and that any Communication entered into by Electronic
Signature, will constitute the legal, valid and binding obligation
of the Pledgor enforceable against the Pledgor in accordance with
the terms thereof to the same extent as if a manually executed
original signature was delivered to the Bank. Any Communication may
be executed in as many counterparts as necessary or convenient,
including both paper and electronic counterparts, but all such
counterparts are one and the same Communication. For the avoidance
of doubt, the authorization under this paragraph may include,
without limitation, use or acceptance by the Bank of a manually
signed paper Communication which has been converted into electronic
form (such as scanned into PDF format), or an electronically signed
Communication converted into another format, for transmission,
delivery and/or retention. The Bank may, at its option, create one
or more copies of any Communication in the form of an imaged
Electronic Record (“Electronic Copy”), which
shall be deemed created in the ordinary course of the Bank’s
business, and destroy the original paper document. All
Communications in the form of an Electronic Record, including an
Electronic Copy, shall be considered an original for all purposes,
and shall have the same legal effect, validity and enforceability
as a paper record. Notwithstanding anything contained herein to the
contrary, the Bank is under no obligation to accept an Electronic
Signature in any form or in any format unless expressly agreed to
by the Bank pursuant to procedures approved by it; provided,
further, without limiting the foregoing, (a) to the extent the Bank
has agreed to accept such Electronic Signature, the Bank shall be
entitled to rely on any such Electronic Signature purportedly given
by or on behalf of any Pledgor without further verification and (b)
upon the request of the Bank any Electronic Signature shall be
promptly followed by a manually executed, original counterpart. For
purposes hereof, “Electronic Record” and
“Electronic
Signature” shall have the meanings assigned to them,
respectively, by 15 USC §7006, as it may be amended from time
to time.
[SIGNATURES ON FOLLOWING PAGE]
The
parties executed this Agreement as of June 25, 2020, intending to
create an instrument executed under seal.
Bank:
Bank of America, N.A.
By: /s/
X.
Xxxxxx Xxxxx XX
X.
Xxxxxx Xxxxx XX, VP, Senior Relationship Manager
Address
for Notices:
Bank of
America
NC1-001-05-13
One
Independence Center
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000-0000
Pledgor:
Lakeland Industries, Inc.
By: /s/
Xxxxx
Xxxxxxx
(Seal)
Xxxxx
Xxxxxxx, Chief Financial Officer
Address
for Notices:
000
Xxxxx Xxxx XX
Xxxxxxx,
XX 00000
Attn:
Xxxxx Xxxxxxx
xxxxxxxxx@xxxxxxxx.xxx
Security
Agreement
9
